We have been receiving various inquiries from our clients regarding what, if any steps they should take or at least consider taking in light of the coronavirus (COVID-19) health issue. As of now, COVID-19 is a global health issue that will have lasting effects for the next number of months. President Trump has declared a national emergency. Here in Ohio, mass gatherings of 100 or more have been banned, all kindergarten through 12th grade schools have been ordered closed through April 3, 2020 and cancellations of minor and major events are occurring on a daily basis.
In light of the fast-changing events, all employers must continually monitor the websites for the Ohio Department of Health (odh.ohio.gov), the Occupational Safety and Health Administration (osha.gov) and the Centers for Disease Control and Prevention (cdc.gov). In addition and especially in light of the national emergency just declared, employers must be proactive and develop new health and safety plans to weather this crisis while maintaining business continuity, workforce management, and litigation avoidance.
The Ohio Department of Health (ODH) has issued a COVID-19 Checklist for business and employers on March 10, 2020 (coronavirus.ohio.gov) that “strongly recommends” the following actions be taken immediately:
- Actively encourage sick employees to stay home until they are free of fever or symptoms (without the use of medication) for at least 24 hours;
- Ensure that your PTO/sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members.
- Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
- Reinforce key messages — stay home when sick, use cough and sneeze etiquette, and practice hand hygiene — to all employees, place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
- Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles, and doorknobs.
- Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).
- Implement policies such as telework and staggered shifts to enhance distance between employees.
- Consider canceling non-essential business travel to other countries per CDC’s travel guidance.
- Remove candy dishes and limit the sharing of pens and workplace equipment.
In addition, OSHA recently published its Guidance on Preparing Workplaces for COVID-19 (osha.gov/Publications/OSHA3990.pdf) that outlines further steps employers can take to protect their workforce. Like the ODH Checklist, the OSHA Guidance contains recommendations, not new standards or regulations. To further assist employers, OSHA divides the workplace into four risk zones to enable employers to determine appropriate work practices and precautions. The four risk zones are:
- Very High Exposure Risk Jobs: Healthcare workers, laboratory personnel and morgue workers performing autopsies working with known or suspected pandemic patients;
- High Exposure Risk Jobs: Healthcare delivery and support staff (those who must enter patients’ rooms) exposed to known or suspected pandemic patients, medical transport workers moving known or suspected pandemic patients in enclosed vehicles, mortuary workers involved in preparing the bodies of known or suspected pandemic individuals;
- Medium Exposure Risk Jobs: Requiring frequent and/or close contact (within 6 feet) of people who may be infected, frequent contact with travelers who may be returning from COVID-19 infected locations, or those who may have contact with the general public (in schools, high-population-density work environments and some high-volume retain settings.); and
- Lower Exposure Risk Jobs: Not requiring contact with people known to be, or suspected of being, infected nor frequent close contact (within 6 feet) of the general public.
The risk zone your workplace falls under will dictate the steps to take to protect your workers. For instance, if your workplace consists of jobs classified as Lower Exposure Risk jobs, you should adopt the ODH steps listed above and in addition develop policies and procedures for prompt identification and isolation of potentially infectious employees. These would include encouraging employees to self-monitor for signs and symptoms of COVID-19 and to report such signs and symptoms to a specific named member of management.
Employers must also be prepared to deal with employees who have no choice but to stay at home and tend to their school-aged children whose schools have closed down. Depending on the employee’s job, telecommuting may be an option. If so, a policy should be developed that outlines the arrangement, determines whether and what computer equipment is necessary and whether or not the business’ expectations of information security can be maintained.
Whether or not the employee’s job can be performed on a telecommuting basis, the issue of what and/or whether to pay employees who are unable to come to work as a result of COVID-19 must be addressed. Under the Ohio and federal wage and hour laws, hourly, non-exempt workers do not need to be paid for not working. However, salaried exempt workers who may perform some work while at home may be entitled to their salary under certain conditions. Employees whose employment is governed by an employment agreement or collective bargaining agreement must be paid, or not paid, as the agreement dictates.
Regardless of your employee’s classification as an exempt or non-exempt employee, you must also determine whether your paid leave policies will be applied and if so, in what manner. This decision will be guided by the wording of the policy and the particular facts present with each employee. Also, if a serious health condition is in existence or suspected, then the Family and Medical Leave Act (FMLA) may come into play for employers subjected to the FMLA.
This article has only touched upon some of the very vexing issues confronting employers in this very fluid COVID-19 environment. In moving forward in this very challenging environment, employers must find that balance, specific to their particular and unique workplace, between employee safety and business continuity. Clear and sensitive policies will need to be developed that reflect the balance and the corporate culture of the business. As always, enhanced safety protocols and rational policies communicated by a knowledgeable and informed management team are the best practices to implement so that normal business operations and employee loyalty and morale can be maintained in these evolving, turbulent times.